TMI Blog2018 (6) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... to the officers or the Tribunal to relax condition 2(h) of the notification. Refund rightly rejected - appeal dismissed - decided against appellant. - ST/30212/2018, ST/30213/2018, ST/30214/2018 - Final Order No. A/30635-30637/2018 - Dated:- 14-6-2018 - Hon ble Mr. P. Venkata Subba Rao, Member ( Technical ) Shri Rama Mohan, Chartered Accountant for the Appellant Shri Guna Ranjan, Superintendent ( AR ) for the Respondent ORDER [ Order Per : P. Venkata Subba Rao ] These appeals are filed by the appellant against Orders- in-Appeal passed by the Learned Commissioner (Appeals) upholding the Orders-in-Original. 2. Heard both sides and perused the records. 3. The brief facts of the case are that the appellant is an exporter engaged in the export of Information Technology services. They also rendered services to their Indian clients. But the bulk of their turnover is export of services and hence they accumulated CENVAT credit. They had filed an application under Rule 5 of CENVAT Credit Rules, 2004 to claim refund of CENVAT credit in proportion to their export services. These claims were rejected by the Adjudicating Authority on the ground that they had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25/10/2016 11. Date of filing ST-3 for the period April 16 to Sept 16 24/10/2016 12. Due date of filing revised ST-3 for the period April 16 to Sept 16 23/01/2017 13. Date of filing revised ST-3 for the period April 16 to Sept 16 10/01/2017 14. CENVAT Reversed amount 7,32,827/- 10,32,532/- 5,39,822/- CENVAT reversed in revised ST-3 for the period April 16 to Sept 16 Refer Page 49 Table I 3 Refer Page 49 Table I 3 Reduced Opening CENVAT credit Refer Page 35 (rear side) Table I 3 15. Appeal Order Date 04/12/2017 04/12/2017 11/12/2017 It is his submission that the appellant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner of Service Tax, Pune [2016 (69) taxmann.com 199 (Mumbai CESTAT)] vii) Principal Commissioner of Service Tax, Pune Vs. Prodair Air Products India (P.) Ltd., [2016 (71) taxmann.com 358 (Mumbai CESTAT)] 6. The Learned Departmental Representative on the other hand, vehemently opposed the appeal and said that the statutory requirement under Rule 5 of the CENVAT Credit Rules read with procedure laid down in Notification No. 05/2006-CE (NT) cannot be modified by the Tribunal. It must be followed. He further argued that debiting the amount in the CENVAT credit before filing the refund claim is a substantive requirement and is not a mere procedure. 7. I have considered the both arguments and perused the records. The Constitution of India has demarcated the roles of Legislature, Executive and Judiciary. Legislation is the exclusive domain of the Legislature. To provide flexibility in the law to deal with changing needs and conditions, the parent Act itself delegates the powers of delegated legislation to the Executive i.e., the Government which is accountable to the Parliament. This delegated legislation, in the form of Rules, Regulations, Notifications, etc., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion is whether it is permissible for the High Court to direct the authorities under the Act to act contrary to the aforesaid statutory provision. We do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. May be the High Court or a Civil Court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a civil court. No such delegation or conferment can ever be conceived. We are, therefore, of the opinion that the direction contained in clause (3) of the impugned order is unsustainable in law. When we expressed this view during the hearing Mr. Hidayatullah requested that in such a ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eans sum total of the value of - (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clause (D) of sub-rule (1) above and the value of all other services, during the relevant period; and (c) all inputs removed as such under sub-rule (5) of rule 3 against an invoice, during the period for which the claim is filed. (2) This rule shall apply to exports made on or after the 1st April, 2012: Provided that the refund may be claimed under this rule, as existing, prior to the commencement of the CENVAT Credit (Third Amendment) Rules, 2012, within a period of one year from such commencement: Provided further that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the Export of Services Rules, 2005 in respect of such tax. Explanation 1.- For the purposes of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al turnover, the value of export services shall be determined in accordance with clause (D) of sub-rule (1) of rule 5 of the said rules. (f) for the value of all services other than export during the quarter, the time of provision of services shall be determined as per the provisions of the Point of Taxation Rules, 2011. (g) the amount of refund claimed shall not be more than the amount lying in balance at the end of quarter for which refund claim is being made or at the time of filing of the refund claim, whichever is less. (h) the amount that is claimed as refund under rule 5 of the said rules shall be debited by the claimant from his CENVAT credit account at the time of making the claim. (i) In case the amount of refund sanctioned is less than the amount of refund claimed, then the claimant may take back the credit of the difference between the amount claimed and amount sanctioned. 3.0 Procedure for filing the refund claim. - (a) The manufacturer or provider of output service, as the case may be, shall submit an application in Form A annexed to the notification, to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
